Month: January 2017

This past Friday, President Trump signed an Executive Order suspending immigration from seven Muslim-majority countries. Around 9:00 PM Saturday, federal judge Ann Donnelly blocked much of the order. Judge Donnelly’s decision sparked a furious backlash among Trump supporters, some of whom temporarily rewrote her Wikipedia page, calling her an Islamist sympathizer. However, more importantly, the order, along with three others issued shortly after, gave a lifeline to lawful immigrants left stranded. It was a stark reminder of how important judges can be.

The President’s ability to appoint federal judges is one of his most enduring powers. Years after he leaves office, the judges President Trump has appointed will continue to hear cases and influence the law. For example, Judge Andrew Hanen, appointed by President George W. Bush, halted President Obama’s DAPA program in 2015. Similarly, Donnelly, appointed by Obama, was able to stay President Trump’s orders.

None of this makes judges political actors. Rather, lifetime appointments serve to insulate federal judges from political pressure and allow them to make unpopular decisions. In 1957, Judge Ronald Davies refused to order federal troops out of Arkansas, allowing them to desegregate Little Rock schools. In 2015, Judge Callie Granade struck down Alabama’s ban on same-sex marriage. History is replete with such examples of federal judges standing up for the Constitution, even when political pressures dictate otherwise.

In less than twelve hours, President Trump will announce his nominee to serve as Associate Justice for the Supreme Court. It will be the first of hundreds of names he will send to the Senate to fill judicial vacancies across the country. Once confirmed, these judges will reshape the law over the next three decades. It is essential that Trump names judges whose fealty is to the Constitution and the rule of law, rather than to a political party or figure. It is equally important for citizens to follow the process and weigh in. After all, if there is a takeaway from the last three days, it is that judges matter.

Two weeks ago, Judge Bill Pryor was the ideal choice to replace Justice Scalia. Pryor, a judge on the Eleventh Circuit Court of Appeals, had a deeply conservative record on the bench. Furthermore, he was the protege of Alabama Senator Jeff Sessions, President Trump’s nominee to be U.S. Attorney General. However, in the last two weeks, Pryor’s chances have faded under attacks from both the left,[1] and the right.[2] Nevertheless, Pryor has been on Trump’s radar for a long time,[3] and as such, a Pryor nomination cannot be discounted.

Background

William Holcombe Pryor Jr. was born in Mobile, Alabama on Apr. 26, 1962. Growing up in a Catholic family, Pryor attended Northeast Louisiana University and Tulane University Law School, serving as editor in chief of the Tulane Law Review. After graduating, Pryor clerked for Fifth Circuit Judge John Minor Wisdom, a civil rights icon.

In 1994, Jeff Sessions, a former judicial nominee himself, was elected to be the first Republican Attorney General of Alabama since reconstruction. Sessions hired Pryor to be his deputy. Upon Sessions’ election as a U.S. Senator in 1996, the 34-year-old Pryor became Alabama’s 46th Attorney General. In 1998, Pryor won election to the position in his own right, narrowly defeating Alabama Supreme Court Justice Terry Butts. Pryor was subsequently re-elected in 2002 by a wider margin.

In 2001, Alabama Supreme Court Chief Justice Roy Moore unveiled a 5280 lb granite monument to the Ten Commandments at the Supreme Court building.[4] In response to a lawsuit alleging a violation of the separation of church and state, Judge Myron Thompson ordered the monument to be removed.[5] After an appeal affirmed, Moore announced his intention to ignore Judge Thompson’s ruling.[6] The monument was eventually removed after Moore’s colleagues overruled his decision.[7] Pryor, the Attorney General of Alabama at the time, filed ethics charges against Moore, arguing that his failure to follow the court order violated his oath of office.[8] Pryor’s prosecution led to Moore’s removal from his position.[9]

On April 9, 2003, Pryor was nominated by President George W. Bush for an Alabama seat on the Eleventh Circuit Court of Appeals. Pryor’s nomination attracted fierce opposition from liberal groups.[10] During his confirmation hearing, Pryor was criticized for stating that the Supreme Court’s decision in Roe v. Wade was “an abomination” because it “led to a morally wrong result.”[11] Pryor was also attacked for filing equating consensual same-sex intimacy with prostitution, adultery, necrophilia, bestiality, incest, and pedophilia.[12] Due to Pryor’s refusal to disavow his previous statements, Democrats blocked his confirmation through the 108th Congress.

On Feb. 20, 2004, President Bush unilaterally appointed Pryor to the Eleventh Circuit using a recess appointment, which would allow Pryor to serve until the end of 2005.[13] The Eleventh Circuit dismissed a court challenge to Pryor’s recess appointment.[14]

Despite the reelection of President Bush and a diminished Democratic Senate minority, Democrats continued to block Pryor’s confirmation. On May 23, 2005, a bipartisan group of 14 Senators announced a deal that would let Pryor and two other nominees get an up-or-down vote. Pryor was confirmed by a small 53-45 margin, with 3 Republican Senators opposing his confirmation.

Jurisprudence

In his twelve years on the federal bench, Pryor has authored more than 300 majority opinions (and many more concurrences and dissents). A review of these opinions confirms his reputation as a firmly conservative jurist.

Frequent Dismissals on Jurisdiction, Standing, and Mootness Grounds

For a dispute to properly be in federal court, the court must have jurisdiction over the subject matter of the case, the parties must have standing to bring suit, and the case must not be moot. These requirements ensure that federal courts are only addressing disputes that they can actually remedy. Pryor’s opinions interpret these requirements very stringently, frequently dismissing cases for lack of jurisdiction,[15] standing,[16] or as moot.[17]

In one notable case, Pryor wrote for a District Court panel in holding that Democratic state legislators in Alabama lacked standing to challenge racial gerrymandering.[18] This opinion was overturned by the U.S. Supreme Court, who held that Pryor’s opinion violated “elementary principles of procedural fairness.”[19]

Narrow Interpretation of Criminal Procedural Protections

The American criminal justice system relies on the principle that the accused is presumed innocent until proven guilty. This principle is enforced through the protections of the Fourth, Fifth, and Sixth Amendments. Pryor, however, has interpreted these protections narrowly.

For example, Pryor has repeatedly upheld searches and seizures from Fourth Amendment challenges.[20] In Castillo v. U.S., Pryor upheld a warrantless search of a defendant enrolled in a pretrial diversion program.[21] Specifically, Pryor noted, as a matter of first impression, that such searches only needed to be justified by reasonable suspicion, not probable cause.[22] Judge Robreno, sitting by designation, disagreed on this point, noting that the defendant “cannot be considered commensurate with a probationer or parolee on the continuum of Fourth Amendment rights.”[23] In another case, Pryor reversed a district court ruling that a border patrol agent lacked reasonable suspicion in stopping a vehicle.[24] Pryor’s opinion sparked a dissent from Judge Rosemary Barkett, noting that the ruling ignores the standard of review and “presents the facts in the light most favorable to the government, cobbling together select portions of the testimony to support its own conclusion.”[25]

Similarly, Pryor has held that admitting hearsay evidence against death penalty defendants does not violate their rights under the Confrontation Clause,[26] that airport screenings are a reasonable administrative search,[27] and that defense counsel’s failure to investigate a claim of juror misconduct is not ineffective assistance of counsel.[28] Each of these opinions sparked a spirited dissent.[29]

Frequent Affirmance of Convictions

Pryor has rejected challenges to convictions that allege insufficiency of the evidence,[30] improper statements by the prosecutors,[31] improper jury instructions,[32] and the erroneous admission of evidence.[33] He has proven equally skeptical to challenges to harsh sentences.[34]

Pryor has been particularly deferential to state courts when facing challenges to state convictions under habeasreview.[35] While the Anti-Terrorism and Effective Death Penalty Act (AEDPA) requires deference to state court decisions unless they are “unreasonable applications” of federal law, Pryor has been willing to defer to state courts even where his colleagues disagree. For example, Pryor affirmed the denial of habeas relief to a prisoner who was convicted after a police detective falsely testified at his trial.[36] In another case, Pryor denied habeas relief to a defendant whose attorney had failed to present mitigating evidence at his death penalty hearing.[37]

In contrast, Pryor has shown a willingness to reverse sentences that he considers too low,[38] and to reverse grants of a new trial for defendant.[39]

Prominent Reversals

Consistent with the record of most court of appeals judges, a small number of Pryor’s opinions have been reversed or criticized by the en banc Eleventh Circuit, or the Supreme Court.

Substantive Reversals by the Supreme Court

CSX Transp., Inc. v. State Bd. of Equalization – This case involved a suit by a railroad challenging the tax valuation of its property. In a 2-1 decision, Pryor held that the Railroad Revitalization and Regulatory Reform Act (4-R Act) does not allow railroads to bring federal suits challenging state tax evaluations.[40] The Supreme Court granted certiorari and reversed in a unanimous decision by Chief Justice Roberts.[41] Roberts found that the 4-R Act’s text was clear and contradicted Pryor’s interpretation.[42]

Alabama Legislative Black Caucus v. Alabama – This case involved a challenge to Alabama’s state legislative districts, brought by black lawmakers. The suit alleged that the districts were drawn with a racial purpose, diluted the vote of African-American voters, and as such, constituted impermissible racial gerrymanders. Pryor rejected all the challenges, upholding the districts over the dissent of Judge Myron Thompson.[43] The Supreme Court reversed in a 5-4 opinion by Justice Breyer.[44] In his opinion, Justice Breyer found Pryor’s conclusions to be “legally erroneous.”[45]

Summary Reversals by the Supreme Court

U.S. v. Smith – In this case, Pryor held that, under the Armed Career Criminal Act, a conviction for fleeing and eluding a law enforcement officer constituted a “violent” felony.[46] The Supreme Court summarily reversed Pryor’s decision,[47] and remanded it to be reevaluated in light of Johnson v. U.S., an opinion by Justice Scalia that struck down the residual clause of the Armed Career Criminal Act.[48]

Hunter v. U.S. – In this case, Pryor rejected challenges to a criminal defendant who was erroneously sentenced as an armed career criminal.[49] The Supreme Court summarily reversed Pryor’s decision.[50]

Reversals by the en banc Eleventh Circuit

Wilson v. Warden– This case involved a prisoner, Wilson, challenging his death sentence under federal habeas review. Wilson argued that his attorney was deficient in failing to present mitigation evidence at his sentencing hearing. Pryor rejected the appeal, holding that the Georgia Supreme Court’s one-sentence dismissal of Wilson’s case was not an unreasonable application of federal law under AEDPA.[51] The Eleventh Circuit granted en banc rehearing, vacating the panel opinion, and, in an opinion by Pryor, held that federal courts were not obligated to “look through” state court opinions to examine their reasoning in habeas cases.[52] This decision sparked two strong dissents, each joined by five judges on the court. Judge Adalberto Jordan dissented, noting that Pryor’s decision ignored both Eleventh Circuit precedent and contrary decisions by sister circuits.[53] Judge Jill Pryor also dissented, stating that the majority opinion “runs roughshod over the principles of federalism.”[54]

Overall Assessment

Perhaps more than any other nominee on Trump’s shortlist, Pryor attracts opposition. Liberal groups object to his aggressive criticisms of Roe,[55] his deeply conservative record on the bench,[56] and his outspokenness in support of conservative politics.[57] At the same time, Pryor has been attacked by conservative groups for his prosecution of Roy Moore.[58] With Senate Majority Leader Mitch McConnell ruling out revoking the minority’s ability to filibuster Supreme Court nominees,[59] and with at least one Republican Senator on record previously opposing Pryor’s confirmation,[60] Pryor’s confirmation seems extremely unlikely.

Nevertheless, if confirmed, Pryor would add a strong new conservative voice to the Supreme Court. Pryor’s willingness to defer to police and prosecutors would move the court rightward on criminal justice issues. Furthermore, Pryor would likely continue the trend of construing standing and jurisdiction narrowly, making it more difficult to bring disputes in federal court. Moreover, Pryor’s willingness to stand up to Moore, and his record on the Eleventh Circuit,[61] suggest that he would continue Justice Scalia’s tradition of the principled dissent, writing with the intent of influencing future trends in the law rather than attracting support from his colleagues.

Pryor is no stranger to grueling confirmation struggles, having survived two to become an appellate judge. However, his nomination to the Supreme Court would likely spark a fight that would dwarf previous clashes. If the Trump administration nominates him, it’ll be because he is, by their standards, worth the battle.

Judge Diane Sykes can be considered the ostensible frontrunner for the Supreme Court seat vacated by Justice Scalia. Sykes has extensive judicial experience, having been a judge continuously since 1992. Furthermore, she is strongly conservative, with a long affiliation with the Federalist Society and the Republican party. Because of these credentials, Judge Sykes has been considered for a Supreme Court nomination by numerous Republican presidential candidates. While President-elect Trump hasn’t indicated who he will nominate to the Supreme Court vacancy, it is inevitable that Judge Sykes will be seriously considered.

Background

Diane Sykes (nee Schwerm) is a Wisconsin native, born in Milwaukee on Dec. 23, 1957. Sykes studied journalism at Northwestern University, marrying fellow journalist Charlie Sykes shortly after graduating.[2] Sykes went on to Marquette University Law School and a clerkship for Judge Terence Evans on the U.S. District Court for the Eastern District of Wisconsin.[3] Following her clerkship, Sykes worked as a civil litigator at Whyte Hirschboek for seven years before her 1992 election to a seat on the Milwaukee County Circuit Court.

As a trial court judge, Sykes developed a reputation as a conservative jurist and a strict sentencer. During her tenure, a number of her decisions were overturned by the Wisconsin Court of Appeals. In one case, Sykes ruled that a defense attorney who instructed his client to lie on the stand was not ineffective. This ruling was overturned by the higher court, who noted that it violated “the overwhelming weight of legal authority.”[4] In another case, she was criticized for remarks from the bench that indicated a bias towards the prosecution.[5]

In 1999, Sykes was chosen by Republican Governor Tommy Thompson to replace Justice Donald Steinmetz on the Wisconsin Supreme Court.[6] While the selection was generally praised, it also invited criticism from State Senator Gary George, who characterized Sykes as a jurist supported by “the right wing of the Republican party”.[7] In 2000, Sykes won election to the Supreme Court in her own right by campaigning as a strict constructionist with law enforcement support.[8] The campaign, while generally low-key, attracted some attention due to Sykes’ ex-husband Charlie’s aggressive advocacy on behalf of his wife.[9]

As a Wisconsin Supreme Court Justice, Sykes built a record of conservative jurisprudence, voting frequently in support of law enforcement, prosecutors, and civil defendants.[10] For example, in one case, Sykes wrote in dissent that a defendant’s right to due process is not violated where one of his jurors indicates his inability to understand the English language, absent any showing of prejudice from the trial court.[11] In another case, Sykes dissented in support of preserving a lease with a term that was expressly prohibited by statutory language.[12] In her opinions, Sykes expressed support for conservative ideas of jurisprudence, including textualism.[13]

On November 14, 2003, Sykes was nominated by President George W. Bush for a seat on the Seventh Circuit Court of Appeals. Sykes’ nomination was supported by Wisconsin’s then-Senators Herb Kohl and Russ Feingold, both Democrats and members of the Senate Judiciary Committee.[14] Nevertheless, the majority of Senate Democrats opposed Sykes’ confirmation, citing her conservative record as a Wisconsin state judge. Specifically, Sen. Durbin noted Sykes’ gratuitous comments while sentencing two anti-abortion protesters who blocked access to an abortion clinic. While noting that blocking access to the clinic was illegal, Sykes went on to praise the defendants, calling them “exemplary citizens” and stating that she respected them for having “the courage of [their] convictions.”[15] Such statements were contrasted with Sykes’ tendency to berate other defendants as a sentencing judge.[16] Despite these concerns, Sykes was confirmed on June 24, 2004 by a vote of 70-27, with 21 Democrats supporting her confirmation.[17] She took her seat on the Seventh Circuit on July 1, 2004.

Jurisprudence

In her twelve years on the federal bench, Sykes has authored nearly 700 majority opinions (and many more concurrences and dissents). A review of these opinions establishes certain patterns in her jurisprudence.

Narrow View of Criminal Procedural Protections

The Fourth, Fifth, and Sixth Amendments provide important structural protections to individuals charged with crimes, and threatened with imprisonment. Sykes has interpreted these protections narrowly, rarely applying sanctions such as the exclusionary rule against overreaching police and prosecutors.

For example, Sykes has generally rejected Fourth Amendment challenges to warrantless searches,[18] and seizures.[19] In United States v. Freeman, Sykes found that the police were justified in conducting a warrantless arrest of a suspect, and in strip searching him prior to booking.[20]

In comparison, Sykes has only applied the exclusionary rule to suppress evidence in a handful of cases.[21] In U.S. v. Stotler, for example, Sykes dissented from a panel decision holding that police officers had probable cause to search an arrestee’s truck.[22]

In cases involving the Fifth Amendment’s protection against self-incrimination, Sykes has rejected challenges to allegedly coercive police interrogations.[23] Sykes has been equally skeptical of claims under the Sixth Amendment right to counsel.[24]

Broad Interpretation of Some First Amendment Rights and Protections

In contrast to her relatively narrow interpretation of the Fourth, Fifth, and Sixth Amendments, Sykes has interpreted the First Amendment broadly to protect political activity from government scrutiny and regulation. In 2011, Sykes struck down Wisconsin’s cap on contributions to political action committees.[25] Sykes also struck down Illinois’ ballot access requirements for independent candidates, ruling that they violated the First and Fourteenth Amendments.[26] In addition, Sykes noted that the use of mandatory bar dues to pay for a public image campaign likely violates the First Amendment rights of Wisconsin attorneys.[27]

On the religion clauses, Sykes notably authored the opinion ruling that for-profit corporations had religious rights, and that requiring them to provide contraception coverage for their employees violated these rights,[28] an opinion that drew a fierce dissent from Judge Ilana Rovner.[29] Sykes’ reasoning was narrowly upheld by the Supreme Court in a 5-4 decision.[30] Sykes also dissented in support of the religious rights of a church that was denied a permit to move its location.[31] In contrast, Sykes has taken a relatively narrow interpretation of Establishment Clause rights. While she did join six of her colleagues in ruling that holding high school graduation ceremonies in an evangelical church violates the First Amendment,[32] she rejected a First Amendment challenge to the display of the Ten Commandments at a public building.[33] Similarly, she dissented from an opinion authored by Judge Posner, arguing that taxpayers could not sue for monetary relief when the federal government violates the Establishment Clause.[34]

Willingness to Allow Plaintiffs to Overcome Pleading Barriers

On the civil side, Sykes has occasionally reversed district court judges for dismissing suits at the pleading stage, indicating a willingness to allow plaintiffs to present civil cases. Notably, she has reversed judges both on judgments on the pleadings,[35] and on grants of summary judgment.[36] She has similarly been skeptical of dismissing cases based on statute of limitations defenses.[37]

Two exceptions to this pattern are Sykes’ willingness to dismiss cases based on lack of standing,[38] and claim preclusion.[39] For example, Sykes was the only judge in an en banc evaluation of a class action claim to find that the case should be dismissed for lack of standing.[40]

Skepticism to Civil Rights and Title VII claims

Sykes’ record also shows a tendency to rule against civil rights, labor, and discrimination plaintiffs. For example, Sykes has repeatedly rejected constitutional claims for police misconduct,[41] and violation of rights in prison.[42] In one case, Sykes dismissed a suit against a police officer who withheld key pieces of information from a warrant application, holding that, while the officer should have known that withholding material information was against the law, it was unclear if the information withheld in this case was material.[43] In another case, Sykes dissented from an opinion by Judge Kenneth Ripple, who held that a prisoner could sue a warden who failed to protect him from attacks by other inmates.[44]

Similarly, Sykes has been skeptical of sex discrimination claims,[45] racial discrimination claims,[46] and claims under the Americans with Disabilities Act (ADA).[47] Sykes notably dissented from an order permitting a pro se litigant to proceed with her ADA claim, arguing that her brief was inadequate under Rule 28 of the Federal Rules of Appellate Procedure.[48]

Prominent Reversals

Consistent with the record of most court of appeals judges, a very small number of Sykes’ opinions have been reversed or criticized by subsequent panels, the en banc Seventh Circuit, or the Supreme Court. Not all of these reversals indicate criticism of Sykes’ reasoning. In some of the cases, the law had evolved after her initial ruling.

Summary Reversals by the Supreme Court

U.S. v. Fish – In one of her first published opinions as a Seventh Circuit judge, Sykes held that in cases where trial judges choose not to depart downward on a sentence, those decisions are not reviewable on appeal.[49] The Supreme Court summarily reversed Sykes’ decision, and remanded it to be re-evaluated in light of United States v. Booker.[50]

Frederick v. Holder – In this opinion, Sykes dismissed claims for statutory and constitutional relief from the petitioner in a removal proceeding.[51] Specifically, Sykes rejected claims that the petitioner was eligible to remain in this country as a lawful permanent resident, and that the removal proceedings violated his equal protection and due process rights.[52] The Supreme Court summarily reversed Sykes’ opinion,[53] remanding it with instructions to review in light of Judulang v. Holder.

Reversals by the en banc Seventh Circuit

U.S. v. Skoien – In 2006, Skoien was convicted of domestic battery in Wisconsin, and placed on probation, a condition of which was that he would not own a firearm. In 2007, Skoein was arrested for using a deer hunting shotgun that belonged to his father. Skoein argued that prohibiting him from lawfully using a firearm violated the Second Amendment’s right to bear arms. While the trial judge rejected his argument by arguing that criminals essentially forfeit their Second Amendment rights, a 3-judge panel of the Seventh Circuit, in an opinion written by Sykes, reversed.[54] In her opinion, Sykes ruled that there could be no blanket forfeiture of Second Amendment rights, and as such, the constitutionality of the restriction must be evaluated under intermediate scrutiny.[55] The full Circuit, meeting en banc, reversed Sykes, holding that categorical prohibitions on firearm ownership were consistent with the Second Amendment.[56] Sykes was the only dissenter from this decision.

Empress Casino Joliet Corp. v. Blagojevich – The plaintiffs in this case were operators of riverboat casinos. They brought suit against the former Governor of Illinois, his campaign finance committee, and Illinois racetracks, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law constructive trust claims. The plaintiffs sought to halt all distribution of state subsidies to Illinois racetracks. The district court held that the Tax Injunction Act barred a judge’s ability to halt the subsidies and place the money in escrow. In a 2-1 decision, Sykes reversed the court, holding that the Tax Injunction Act did not bar his jurisdiction to impose a constructive trust for the subsidies.[57] The full en banc court overruled the panel in an opinion by Judge Richard Posner.[58] Posner, who had dissented from the panel decision, ruled that the district court correctly found the Tax Injunction Act to be a barrier to a judge’s ability to enjoin the Illinois state subsidy program. Sykes dissented from the ruling, joined by Judges Bauer and Kanne.

Minn-Chem, Inc. v. Agrium, Inc. – The plaintiffs and defendants in this case were potash producers. The plaintiffs alleged price fixing and other anti-competitive behaviors by the defendants, and filed suit under the Sherman Act. After the district court denied a motion to dismiss for failure to state a claim, the Seventh Circuit, in an opinion written by Sykes, reversed,[59] relying on a prior Seventh Circuit en banc case, United Phosporus, Ltd. v. Angus Chem. Co.[60] The full Seventh Circuit unanimously reversed the panel and overruled United Phosporus.[61]

U.S. v. Spears – Spears was convicted of five felonies based on his business producing counterfeit identity documents. He appealed three of his convictions: aggravated identity theft, producing a false identification document, and unlawful possession of five or more false identification documents. The panel, led by Sykes, affirmed two of his convictions, but reversed the one for unlawful possession.[62] The full court granted en banc reconsideration, and affirmed Sykes’ rulings on two of the convictions.[63] However, it overturned Spears’ conviction for aggravated identity theft, holding that Spears’ provision of false identification papers to others only constituted identity fraud and not identity theft.

Reversals by Subsequent Panels

U.S. v. Baldwin – In another early opinion, Sykes ruled that a defendant cannot challenge a concurrent sentence under an indictment that was one day late.[64] Specifically, Sykes noted that the concurrent conviction would not have added any time to the defendant’s sentence, and as such, the only penalty he faces for the error is a de minimis $100 ‘special assessment.’[65] Two years later, Judge Sykes herself wrote an opinion overruling Baldwin and the precedent it relied on, holding that such multiplicitous punishment constituted error.[66]

U.S. v. Newbern – Sykes wrote for the panel, holding that the Illinois crime of “reckless discharge of a firearm” constitutes a crime of violence under the sentencing guidelines.[67] The next year, Newbern was overturned by another panel of the Seventh Circuit based on the Supreme Court’s decision in Begay v. United States, which had held the contrary.[68]

Andrews v. CBOCS W., Inc. – Andrews, a white server at a Cracker Barrel restaurant, brought suit under Title VII and the Age Discrimination in Employment Act (ADEA), alleging that her black manager fired her based on her race and age. In her opinion affirming the dismissal of the case, Sykes laid out the evidentiary burden on the plaintiff in discrimination cases, noting that the burden is different based on whether the evidence offered is direct or indirect.[69] Two years later, another panel of the Seventh Circuit overruled Andrews and its progeny, holding that direct and indirect evidence cannot be subjected to different legal standards, and that rather, all evidence should be evaluated holistically.[70]

Speeches and Panel Discussions

As noted above, Sykes has maintained a longstanding affiliation with the Federalist Society, an organization of conservative legal professionals seeking to mold the law in accordance with principles of textualism and originalism. Thus, Sykes has spoken at several Federalist Society events about theories of legal interpretation.

On Dec. 12, 2012, Sykes participated in a discussion on Judge J. Harvie Wilkinson’s book, Cosmic Constitutional Theory, in Indianapolis.[71] During the discussion, moderated by Indiana Solicitor General Thomas Fisher, Sykes voiced her general agreement with the central thesis of the book: that courts need to take a restrained approach to evaluating law. However, Sykes went on to note that deference to the legislature on all points defeats the Constitution’s guarantees of liberty, and that judges must rely on an originalist understanding of the Constitution in evaluating its provisions.

Sykes also criticized Congress’ extensive use of its spending power to regulate interstate commerce, noting that, in her opinion, such actions go beyond the constraints of the Commerce Clause.

Overall Assessment

On paper, Judge Diane Sykes has the qualifications to serve on the U.S. Supreme Court. She has spent over 12 years on one of the most prestigious court of appeals, and has authored hundreds of opinions during her time there. Her opinions, which cover the entire gamut of federal law, are generally well-reasoned and concise. Furthermore, she is well-liked by her colleagues on the Seventh Circuit. She has also been praised by colleagues on the Wisconsin Supreme Court, including ideological opponents such as Justice Shirley Abrahamson. Liberal Democrats, including former Senator Russ Feingold, have spoken highly of her ability and her character.

Nevertheless, if nominated, Judge Sykes is unlikely to face a smooth ride to confirmation. Her opinions and writings betray a strong conservative leaning, and a tendency to originalist and textualist interpretations of the Constitution. Sykes’ narrow view of constitutional protections awarded to criminal defendants, combined with her expansive views of other protections, such as those of the First Amendment, could be interpreted as a results-oriented approach intended to produce conservative outcomes. Her opinions have drawn dissents and opposition even from other conservative judges, including Reagan appointees Richard Posner, and Frank Easterbrook. If Sykes is nominated, her opinions in Korte and Skoein are likely to come under particular scrutiny (although regarding the former, Sykes can take comfort in the Supreme Court’s adoption of her view in Hobby Lobby).

Overall, if confirmed, Sykes would likely make the Supreme Court a friendlier forum for prosecutors and civil defendants. Her supporters would likely get what they expect: a judicial conservative.

[8] STL, Butler is Best Choice for Supreme Court, The Journal Times, Mar. 29, 2000, http://journaltimes.com/news/opinion/editorial/butler-is-best-choice-for-supreme-court/article_a21d0e45-26de-5ba0-9dcd-afabda98c9a1.html (“[Sykes] is a strict constructionist who enjoys heavy support from conservatives and the law enforcement community.”). See also Confirmation Hearings on Federal Appointments Before the S. Comm. on the Judiciary, 108th Cong. 695, 705 (2004) (Questions from Sen. Dick Durbin to Diane Sykes), asking about radio ads Sykes ran saying she was “such a tough sentencer that defense lawyers tried to avoid [her] in court. Sen. Durbin also asked about articles referring to Sykes’ reputation as a “hanging judge” and that there was a wing of a maximum-security prison informally named after her.

[22]United States v. Stotler, 591 F.3d 935, 942 (7th Cir. 2010) (Sykes, J., dissenting) (“The alternative justification for the search—that there was probable cause to believe that Stotler’s truck contained evidence of a crime—simply is not supported by the record”).

[46]See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 877 (7th Cir. 2012) (holding that a compensation program that has the effect of discriminating against black brokers does not violate the law without evidence of racial animus in adopting the program); Harris v. Warrick Cty. Sheriff’s Dep’t, 666 F.3d 444, 446 (7th Cir. 2012); Sartor v. Spherion Corp., 388 F.3d 275, 278 (7th Cir. 2004) (“In the context of a business undergoing a substantial reorganization, the fact that the sole black employee at a particular management level was not retained does not itself signal that the company was motivated to fire her because of her race.”).

[48]Johns v. Laidlaw Educ. Servs., 199 F. App’x 568, 571–72 (7th Cir. 2006) (Sykes, J., dissenting) (“[Plaintiff’s] appellate brief consists of four pages of generalized assertions of discrimination on the part of Laidlaw Education Services and a rambling account of her shoulder surgery and the light duty work assignment Laidlaw provided during her recuperation. It contains no legal argument or citation to supporting legal authority or record evidence.”).

As we all learned from Schoolhouse Rock, the United States has three branches of government: the legislature, which makes the laws; the executive, which implements them; and the judiciary, which is charged with interpreting them. This third branch of government may not be elected, but is nonetheless deeply sensitive to politics. This is because the Founding Fathers lay the power to appoint federal judges with political actors, with the President sending forward nominations, and the Senate providing “advice and consent”.

As citizens, the calibre of judges serving in federal courthouses affects us each day. Federal judges are charged with being the gatekeepers of justice: ensuring that each case, no matter whether civil or criminal, is handled in a timely and just manner. Judges help ensure that disputes are settled appropriately, that meritless lawsuits are dismissed, and that prosecutions comply with the Constitution. If and when any of us are called into a federal courthouse, it is the judge who will ensure that justice is done.

The modern appointments process involves several layers of “vetting” of potential judicial nominees. Candidates are generally first evaluated by their home state Senators and their staff. Then, they are vetted again by the White House Counsel’s office and the Department of Justice. They are then examined by the FBI and the American Bar Association (ABA). Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum. At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.

The Vetting Room is not a part of that process. We do not maintain a singular ideology, except for fealty to the U.S. Constitution and the rule of law. Our goal is not to advance a particular agenda, but rather, to inform the general public about candidates for the federal bench. As nominations are made public by President Trump, we will review their records, including decisions they have authored, articles they have written, and cases they have litigated. We will summarize our findings on this forum, for any member of the public to review and evaluate. In doing so, we hope to de-mystify the judicial appointments process and to introduce the populace to their new judges. After all, given the impact of judges on our daily lives, it makes sense to have the public be a part of “vetting” them.